SABINA,J. - (1.) Appellant has filed this appeal, challenging the award dated 02.02.2012 passed by the Tribunal, seeking enhancement of compensation.
(2.) Learned counsel for the appellant has submitted that the appellant was aged 11 years, at the time of accident and has suffered 100% disability. Appellant is bedridden and unable to do his daily chores. Learned Tribunal has awarded compensation on a lower side. In support of his arguments, learned counsel has placed reliance on the judgment of the Hon'ble Supreme Court in Kumari Kiran Thr. Her father Harinarayan v. Sajjan Singh and Ors. 2015 (1) R.A.R. 87 (SC) , wherein it has been held as under:- "With regard to the appellant-minors 12. With respect to compensation towards future loss of income due to permanent disability for appellant-minors, we refer to the case of Master Mallikarjun v. Divisional Manager, the National Insurance Company Limited and Anr. , wherein this Court held as under:- "8. It is unfortunate that both the Tribunal and the High Court have properly appreciated the medical evidence available in the case. The age of the child and deformities on his body resulting in disability, have been duly taken note of. As held by this Court in R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and Ors. (1995) 1 SCC 551 , while assessing the non-pecuniary damages, the damages for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the loss of amenities in life like difficulty in running, participation in active sports, etc., damages on account of inconvenience, hardship, discomfort, disappointment, frustration, etc., have to be addressed especially in the case of a child victim. For a child, the best part of his life is yet to come. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income. The only indication in the Second Schedule for non-earning persons is to take the notional income as Rs. 15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked out under the non-pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The 4 AIR 2014 SC 736 compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc. (Emphasis laid by this Court)" The Tribunal has calculated the future loss of income by taking the notional income of each the appellant-minor as Rs. 15,000/- per annum. We are of the considered view that a child's notional income cannot be ascertained as per the figure given for a non-earning individuals in the second schedule of the Motor Vehicles Act, 1988. As the Tribunal and the High Court have followed the principles laid down by this Court in the above case by awarding loss of future income due to permanent disability, therefore, we set aside the same. Further, reiterating the same principles as held in Master Mallikarjun's case (supra), we award Rs. 1,00,000/- each towards shock, pain and suffering (non-pecuniary head) in place of loss of future income due to permanent disability. Further, in Master Mallikarjun case (supra) with respect to compensation for permanent disability this Court held thus:- "12. Though, it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs. 3 lakhs; upto 60%, Rs. 4 lakhs; upto 90%, Rs. 5 lakhs and above 90%, it should be Rs. 6 lakhs. For permanent disability upto 10%, it should be Rs. 1 lakh, unless there are exceptional circumstances to take different yardstick..." Hence, this Court in accordance with the principles laid down by this Court in the above case (supra), and after examining the facts, evidence on record and circumstances of the case on hand, we deem it fit and proper to award Rs. 3,00,000/- towards permanent disability of the appellant-minors viz. Kumari Kiran and Master Sachin, since they have suffered 30% and 20% permanent disability respectively, due to the shortening of their right leg by one inch after the injuries sustained in the motor accident. Further, upon considering the age of appellant minors, they have a long journey ahead of them in their lives, during which they along with their parents will have to endure an immeasurable amount of agony and uncertain medical expenses due to this motor-vehicle accident. Thus, based on the principles laid down in the above case, we award Rs. 25,000/- each towards agony to parents and Rs. 25,000/- each towards future medical expenses. " x x x x x x x x x x 20. In the result, the appellants shall be entitled to compensation under the different heads as per the following table: JUDGEMENT_136_LAWS(RAJ)4_2018_1.html Thus, the total compensation payable to all the appellants by the respondent Insurance Company will be as per the total amount indicated in the preceding table with interest @ 9% from the date of filing of the application till the date of payment."
(3.) Learned counsel for the respondent No. 2 have opposed the appeal and has submitted that the compensation granted by the Tribunal did require any enhancement.;